Bloggers v. Bloggers

I’m truly stumped by this one. On the one hand, there is no better test of a free speech enthusiast’s commitment to principle than a case where a self-proclaimed “journalist” harasses bloggers by creating websites to ruin their Internet footprints. On the other hand, when the tactics of an individual are so corrosive to the free exchange of ideas, can they really be called speech?

A $2.5 million judgment was awarded against Crystal Cox for defamation after she allegedly purposely destroyed the reputation of Obsidian Financial Group, LLC and its firm principal Kevin Padrick. She’s also targeted popular blogger Marc Randazza (and his daughter), creating websites to affect their Google footprints, then offering her services to undo the reputational harms that she has perpetrated.

Because most of what Cox wrote was too hyperbolic and subjective to give rise to a defamation suit, Cox was sued only for a blog post with specific statements that Padrick and Obsidian committed fraud. Cox claims to have a source for these statements, but she was not able to prove their veracity. Under Oregon’s libel laws, media persons do not have to reveal their sources, and plaintiffs seeking presumed damages against journalists must prove that statements were made with “actual malice.” However, according to the district court, Cox is not a media person. She has no journalistic credentials, does not engage in fact-checking and other techniques of journalists, and does not contact the “other side” to get multiple perspectives on a story.

Cox’s attorneys, Benjamin Souede and Professor (and blogger) Eugene Volokh, argued that all individuals who speak to the public are entitled to First Amendment libel protections, not just media personnel. The district court ruled that this argument had not been made during trial, reaffirmed that Cox was not a journalist (although the court noted that some bloggers could be), and upheld the verdict against her. And now onto the Ninth Circuit.

America has exceptional free speech protections that make proving defamation very difficult, and this balance favors speech over reputational harms. After all, reputation can be remedied with more speech. But this balance only goes so far. We must now contend with some difficult questions. Is Cox a journalist, and should only journalists be entitled to special protections in defamation suits against private plaintiffs? Some bloggers are quick to disassociate from Cox. They claim she is not one of their own because of her apparently unscrupulous motives and her minuscule contribution to public discourse. How much responsibility should bloggers have to bear when someone’s reputation is on the line? Should we require the writers of the most democratic medium yet- the blog- to credential themselves, to call all sources, to fact-check? What is best for free speech, and is that actually the relevant question?

When I worked at the Foundation for Individual Rights in Education, a nonpartisan, nonprofit organization that protects the First Amendment rights of students and faculty at public universities, we defended all manner of speech that I sometimes personally found objectionable. We also championed some speech that I didn’t find particularly bothersome, but that others did, sometimes justifiably. The temptation to argue that certain speech must be curtailed because it inhibits the speech of others is always there, but we must resist it. We must find a way to be tolerant of the intolerant, to allow room for those who would not allow room for us, to gaze into the abyss without the abyss gazing back into us. Yet, perhaps Cox crossed a line by not just speaking objectionably, but by speaking for purposes other than communication.

10 Responses

A focus on credentials is, I think, misguided. But the fact is that the protections given to the media are above and beyond what normal free speech principles require: it’s not an unreasonable constraint on free speech to demand that people who make damaging factual claims support them with a justifiable level of facts.

If we give more protections to the media, it’s because we expect journalists to engage in a certain level of self-regulation and abide by professional ethics. Fact-checking, getting other sides of the story, honest distribution, “public interest” aims, etc are all a part of that. It makes no sense for people who refuse to abide by the same standards to demand the same benefits. With responsibility comes trust, and people like Cox have failed to earn it.

I don’t think it makes much sense to have separate protections for members of the media. For one thing, I’m not sure what that means anymore. Sure, the NYT likes to talk about its Bagdad bureau, but there are plenty of professional newspapers that are pretty indistinguishable from news blogs.

I am not sure I understand on what site the actionable claim was made. But it seems that if journalists get special protection, that should only apply to their actions as journalists. Does the Oregon law really allow a journalist to commit libel in random pamphlets they write for personal reasons?

I’m also somewhat confused as to why this was so important to the case. Surely, the pattern of site registration and posting would have been sufficient to prove actual malice.

Regardless, I think that at the very least, there is no First Amendment value in offering your services to eradicate the lies that you have spread. So there should definitely be a way to attack the behavior that way.

Finally, Google allows you to report that sort of spamming activity, so its not as though you are powerless.

I feel bad for Eugene Volokh who defended this unsavory individual. I am reminded of Mr. Brown who defended Klan member Brandenburg in the eponymous case repeatedly calling his client stupid.

Totally going off just two hours of sleep here, but one thing this maybe highlights to me is maybe this is an illustration of how technology might blur the speech/act distinction? That is, with phenomena like information cascades (http://en.wikipedia.org/wiki/Information_cascade) that are dramatically increased by information technologies, we can suddenly “do” more with things that traditionally also looked like speech. And maybe that in turn suggests that the use of that distinction isn’t particularly helpful anymore in the world of the Internets and maybe some other legal distinction might be more useful? I don’t know, because I don’t do this stuff!

But despite not doing this stuff, I *am* interested in a separate part of this: the sort of interesting ethical quandaries that advocates can be placed into. I mean, we see that a bit in the context of criminal defense and prosecutors running into real life situations that create tensions with their positions. (I had a vaguely similar quandary when faced with having to describe a mugger while at the same time being fairly well-versed on eyewitness identification error studies.) Is taking a hard-principled stand (like Marc seems to be taking, see, e.g.., his blog posts) more “ethical” or is the more situationalist perspective (a la Volokh et al) more ethical? What do you think?

Yeek, that’s what I get for posting off two hours of sleep. The last sentence shouldn’t have read (a la Volokh et al) (I think I had a third category in there are one point, and then wiped it out through cutting and pasting), but should have read “other first amendment bloggers taking more middle ground stances”. (With some examples included, only I was really sleepy.) Sorry for the seeming misrepresentation, Volokh et al!

Steph Tai, I’m not sure that technology calls for an undoing of the speech/action distinction, but perhaps a refinement. However, just because speech is more effective does not convert it into action. Although technology increases the efficacy and therefore the potential harm of “bad” speech, I don’t think this social cost should erode our speech/action distinction.

Of course, I’m ok with middle ground stances, as long as they’re principled, which I would equate with being “ethical.”

The problem with the madness that is Ms Cox is that she seems to have also tried to extort her victims (and lets set the record straight they are victims no matter if what she is doing is protected by hyperbole) by offering her “reputation management” services to clean up the bad press that the person/organisation has suffered on the internet for a set amount per month when she herself is the one that has caused the problem in the first place. At one stage Ms Cox had over 500 web sites for the sole purpose of Google bombing, and even proudly states this herself

As you can see I have been following this sorry story for a while now. Cox is not insane as some have suggested, she’s quite Intelligent (Being Pro Se for her case to this stage requires a bit of intelligence for a layperson), though she is deluded and more than likely suffering from some sort of personality disorder, though what she is doing is with intent, to serve her own needs.

She is not an Investigative Blogger nor a journalist by any stretch, and her ethics are non existent. She’s more a petty thug or playground bully who is deluded into thinking she is some modern day Joan of Arc or other folk hero fighting for the little guys.

The problem with the madness that is Ms Cox is that she seems to have also tried to extort her victims (and lets set the record straight they are victims no matter if what she is doing is protected by hyperbole) by offering her “reputation management” services to clean up the bad press that the person/organisation has suffered on the internet for a set amount per month when she herself is the one that has caused the problem in the first place. At one stage Ms Cox had over 500 web sites for the sole purpose of Google bombing, and even proudly states this herself

As you can see I have been following this sorry story for a while now and am extremely interested in where it is heading. To me It is not about Mr Randazza, his daughter (though that was abhorrent to myself), Obsidian, Padrick, or even the appeal anymore.

It’s about how Cox or someone like her could affect this still fragile entity we call the Internet and its social and legal framework for years to come.